Ohio Court Denies Unemployment Compensation to Employee Who Failed to Obtain New Certification Required by Employer

Yesterday, the Ohio Court of Appeals affirmed the denial of unemployment compensation to an employee who failed to obtain a new certification required by her job despite being given eleven months to do so before she was fired.   Farrar v. Univ. Hosp. Health Sys., Inc., 2024-Ohio-5374.   The court found that the employer had just cause to terminate her employment because she was not without some fault in her delay in obtaining the newly required certification, which she blamed on her ignorance that her employer would have reimbursed her expenses if she passed the test.  The court did not find that she was “unsuitable” because the employer failed to notify her of the new requirement when it purchased her former employer and this was not a promotion which was conditioned on the certification requirement.  Nonetheless, the Court found that she was not the victim of economic or business conditions, which was the underlying purpose of unemployment compensation.

According to the Court’s opinion, the claimant had been hired as a medical coding specialist in 2014.  Her employing hospital was acquired by her new employer in May 2021.  In December 2021, it imposed a new requirement on medical coders to obtain certification by June 30, 2022.  The claimant was unaware that the employer would provide study materials at cost or reimburse her for all of her expenses to take the test if she passed.  The employer indicated during the unemployment hearing that the test was offered every two weeks.  The claimant did not attempt to take it until June 2022 and she failed.  She was given an extension until December 1, but she did not try again to take it until November.  She again failed.  She indicated that she was planning to retake the test when she was fired on December 1, 2022.

Typically, an employee is not found to have been at fault if s/he is unable to meet a new condition of employment.   The Ohio Supreme Court’s test in Tzangas indicates that just cause requires proof that the employee’s job performance was unsatisfactory based on expectations that were established at the time of hire and the “requirements of the job did not change substantially since the date of the original hiring for that particular position.”  Later decisions have found that this same test applies to promotions – i.e., an employee is at fault if s/he fails to obtain a required certification required as a condition of a job promotion.  In this case, the employer implied that the claimant had been hired at the time the employer acquired her former employer.  However, the evidence indicated that the certification requirement was not communicated to the claimant until the following year and the job description had been revised accordingly.  Therefore, the employer could not rely on Tzangas to prove that she had been unsuitable for the medical coder position.

Nonetheless, the court found that the Tzangas test was not the only basis to find an employee to be at fault for their unemployment.

{¶14} “Just cause” within the meaning of R.C. 4141.29(D)(2)(a) “‘“is that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act.”’”  . . .  “The determination whether there is just cause for discharge depends upon the factual circumstances of each case.”  . . . “‘[W]hat constitutes just cause must be analyzed in conjunction with the legislative purpose underlying the Unemployment Compensation Act. Essentially, the Act’s purpose is “to enable unfortunate employees, who become and remain involuntarily unemployed by adverse business and industrial conditions, to subsist on a reasonably decent level and is in keeping with the humanitarian and enlightened concepts of this modern day.”’”  . . .

{¶15} Accordingly, although an employee’s behavior need not amount to misconduct, the employee must have borne some fault to establish “just cause” for a discharge for purposes of unemployment compensation.  . . .  Fault has been recognized in a variety of situations, including “willful or heedless disregard of a duty, a violation of an employer’s instructions, or unsuitability for a position.”

 . . .

{¶21} However, appellees have provided no authority standing for the proposition that a change in ownership of an employer necessarily results in a new “hire” of a retained employee for purposes of applying the Tzangas unsuitability test. Further, although appellees maintained at oral argument that the acquisition occurred in May 2021, the record does not appear to contain the date in 2021 that University Hospitals acquired Lake Health Hospital.

 . . .

{¶30} However, again, unsuitability is only one of several bases of a finding of just cause for a discharge.  . . .  Thus, contrary to Farrar’s position in her brief, it does not follow that, where the Tzangas test is unsatisfied, an employee is not at fault for the discharge for purposes of just cause. Instead, as previously addressed, whether just cause exists is dependent on the factual circumstances of the case, viewed in light of the purposes of the Unemployment Compensation Act.  . . .  Here, the review commission considered the particular facts of this case: on January 1, 2022, University Hospitals notified the coding specialists, including Farrar, of the requirement that they obtain coding certification within six months; Farrar failed to meet the deadline due to personal and financial reasons; University Hospitals provided extensions of the deadline, allowing her until November 30, 2022 to pass a certification examination; and Farrar failed to pass a certification examination prior to November 30, 2022. The review commission concluded that these facts demonstrated sufficient fault on behalf of Farrar to deem her discharged for just cause. Such a conclusion is consistent with the underlying purposes of the Unemployment Act. As the Ohio Supreme Court has cautioned:

The Act does not exist to protect employees from themselves, but to protect them from economic forces over which they have no control. When an employee is at fault, [s]he is no longer the victim of fortune’s whims, but is instead directly responsible for h[er] own predicament. Fault on the employee’s part separates h[er] from the Act's intent and the Act’s protection. Thus, fault is essential to the unique chemistry of a just cause termination.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Buckeye Employment Litigation

The OSU is one of the state’s largest employers and, as a result, is a frequent target of lawsuits, which sometimes are found to have merit.  Here’s just two from this calendar year.  In the most recent, the Sixth Circuit affirmed OSU’s judgment on a failure to promote claim.  In the second, the Court reversed OSU’s judgment on a Title VII claim brought by a Ph.D student. 

In August, a divided Sixth Circuit reversed OSU’s summary judgment and a professor’s jury verdict on claims that the professor had sexually harassed and retaliated against a Ph.D student/Graduate Fellow, finding that she could be an employee protected by Title VII, that her physical pushing him away was protected conduct and that evidence was improperly excluded from trial that could have possibly help to rebut some of the professor’s defenses.  Huang v. OSU, No. 23-3469 (6^th Cir. 8/28/24).   She blamed her advisors for her initially failing her exam by unanimous vote of the committee and did not tell anyone about the alleged harassment until after she failed her Ph.D examination.  The dissent noted that she had failed to raise arguments before the trial court, and thus, waived her right to challenge certain rulings on appeal.   Moreover, some of the evidence actually was submitted to the jury, which still found in favor of the professor.  The case is very fact specific and there were no corroborating witnesses to her allegations of physical touching, but several witnesses supported the professor’s defenses. 

In October, the Sixth Circuit affirmed OSU’s summary judgment on a race discrimination claim where the plaintiff nurse had been rejected 89 times for promotion to an APP position and the hospital allegedly only employed two black nurses in that position.  Solis v. OSU Wexner Medical Center, No.  24-3230 (6^th Cir. 10/25/24).   The APP position generally required an advance degree and the hiring manager had advised her to obtain acute care experience if she wanted to be promoted.  Nonetheless, she never sought or obtained that experience or an advanced nursing degree, although she did obtain NP certification in family medicine.  She only challenged not being hired for one of the positions, which was given to a white male who had recently graduated with his masters nursing degree and had substantial and recent acute care experience and with LVADs (which would be regularly required in that department and which she lacked). 

Although she alleged a prima facie case, she failed to produce evidence that the explanation for her non-hiring was pretextual.   She could not create a disputed issue of material fact by simply subjectively asserting that the hiring manager was not credible. 

The court rejected her challenge to OSU’s reliance on his LVAD experience and graduation when it was not mentioned in the job description and she was not asked about it in any interview.

An employer is not “rigidly bound by the language in a job description.”  . . .  Nor does Title VII “diminish lawful traditional management prerogatives in choosing among qualified candidates.”  . . .  Here, Wexner was free to consider candidates’ LVAD experience as a factor external to its posted job description when selecting among suitable applicants.  . . . [his] duties as a nurse attending to patients with acute-care needs required a more advanced understanding of LVADs because of the patients’ unstable conditions. [She] lacked this knowledge. Her patients generally did not require acute care, so she had less experience with LVADs. OSU was permitted to weigh [his] LVAD-specific background in his favor when deciding whom to hire.  . . .

The Court also rejected her argument that OSU’s explanation “shifted” to only later mention the LVAD experience:

The record reveals that Wexner has consistently noted [his] significant experience in acute care as a rationale for preferring [him] over [her]. And during this litigation, the hospital has clarified that [his] prior job as an acute care nurse required specific, advanced LVAD use that [hers] did not see day-to-day as a staff nurse. Moreover, [the manager] offered additional insight into why he hired [him] over [her] that in no way contradicts the hospital’s prior justifications. As previously noted, [the manager], in a sworn deposition, stated that he preferred recent graduates because they have hands-on experience and strong muscle memory from recent rotations that can be applied to the APP job immediately. That additional reason does not constitute a “shifting justification” giving rise to pretext. Wexner did not abandon its initial hiring justification in lieu of another conflicting reason. Instead, it gave additional, permissible explanations for why Wade was the superior applicant.  

The Court also rejected her argument that the interviewers’ subjective evaluations of the candidates was discriminatory.  “Proof an employer used subjective criteria does not, without more, establish pretext.”

While we agree that the hospital used some subjective criteria in its candidate evaluation process, doing so does not demonstrate pretext. An employer may consider subjective factors like attitude, self-confidence, teamwork, and other nondiscriminatory criteria in its evaluation process.  . . . . And in fact, the job description put applicants on notice that these factors would be considered. More still, it is not within the court’s purview to investigate how [the manager] weighed candidates’ subjective qualities such as “teamwork” and “customer focused”,  . . . , when making the ultimate hiring decision.  . . . . The law does not require Wexner to make a perfect decision, nor does it forbid the hospital from making decisions that [she] disagrees with.  . . .  [She] may oppose the interviewers’ ultimate conclusions about how she faired throughout the interview process, but without more, she has not shown that Wexner acted with a discriminatory motive when placing secondary value on certain subjective qualities.

The Court also rejected her statistical evidence.  First, her expert relied on the number of qualified black applicants nationwide instead of in Central Ohio, which was the relevant labor market.  Secondly, OSU apparently contended that it did not keep track of the race of its employees or require them to disclose their race, calling into question the number of black APP nurses it employed. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

En Banc Sixth Circuit to Reconsider Olentangy School's Pronoun/Gender Identity Anti-Harassment Policy

 On Friday, the en banc (i.e., entire) Sixth Circuit Court of Appeals vacated the divided panel's decision rejecting a parent group's First Amendment challenge to the school's pronoun/gender identity anti-harassment policy, affirming a prior decision by Columbus Federal Judge Marbley.  The entire court will consider the case, which could have significant First Amendment ramifications, Title IX and maybe even affect the Court's prior decision in Meriwether v. Hartop (which had created an exception for preferred pronoun mandates if the speaker avoided using pronouns altogether).  The case is now again considered a pending appeal, has been opened to supplemental briefing and a new oral argument will be scheduled.  

FMLA Retaliation Claim Survives Dismissal Even if Employee Was Not FMLA Eligible at Time of FMLA Request

On Monday, the Lake County Court of Appeals reversed an employer’s judgment on a FMLA claim brought by a former employee who had been fired the day before she was to marry her seriously ill finance after she requested once again to leave work early.   Mahoney-Offi v. Great Expressions Dental Ctrs., 2024-Ohio-5160.   The court concluded that her complaint could state a valid claim for FMLA retaliation because she was not required to be eligible for FMLA at the time of the leave request.  If she “is ultimately able to prove that her termination was not the result of her request to leave early on December 9 but in retaliation for her prior inquiry about FMLA leave, then she has stated a viable claim for retaliation under the FMLA.”

According to the court’s opinion, the plaintiff had been requesting to take time off to care for her seriously ill boyfriend.  She had requested and been denied FMLA on the grounds that they were not married.  However, it was suggested to her by management that she would be eligible for FMLA if she married him.  Shortly thereafter, they became engaged and were scheduled to be married on December 10.  On December 9, she requested to leave work early.  Initially, it was to prepare for her wedding, but later she said it was because he had become sicker and she needed to care for him.  Knowing that she planned to marry the next day, the employer then fired her on December 9.  She filed suit under the FMLA, which was initially dismissed on the grounds that she was not eligible for leave on December 9 and had already been denied leave.

The Court of Appeals reversed on the grounds that a plaintiff may pursue a FMLA retaliation claim if she was terminated for merely requesting leave (which is a protected activity) even if she was not eligible for leave at the time of the FMLA request.   However, a jury could still rule in favor of the employer if it found that she was fired for requesting to leave early on December 9, instead of the leave which the employer knew she intended to take after she was married on December 10. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects Discrimination Claim After Plaintiff Repeatedly Failed Testing Requirement Not Mentioned in Job Posting

The Sixth Circuit affirmed an employer’s summary judgment on an age discrimination claim brought by a disappointed employee who was denied a promotion after repeatedly failing the aptitude test passed by younger employees.  Walden v. General Electric Int’l, Inc. No. 24-5141 (6^th Cir. 10/24/24).   The plaintiff could not show that he was qualified for the promotion when he continued to fail the test.  The Court rejected his arguments that he was qualified because he satisfied the requirements of the job posting, which did not mention the established testing requirement.  The Court also found that the younger, successful employees were not similarly-situated because they passed the test and he did not.   The  Court also rejected his speculative arguments that the younger employees did not complete the test by themselves. 

According to the Court’s opinion, the plaintiff had worked tool and die maker for decades, then accepted a job as machine operator with the defendant employer.  He later applied for a tool maker position which required at least five years of experience and promised the job to the qualified applicant with the most seniority.  However, the employer had agreed with the union several years earlier to require a passing 85% score on a written test which was jointly developed.  The plaintiff failed the test with only an 80% score (which had been rounded up), while two younger applicants passed with 100% and 92%.  The next month, the union and employer agreed to have a local community college develop and administer the test, which now had written and hands-on components.   They also lowered the passing score to 70%.   However, the plaintiff only received a score of 51%, which the other, younger applicant received a score of 69.6%, which was rounded up to 70%.  The plaintiff filed an EEOC charge, Unfair Labor Practice charge and sued bother the employer and the union.

The Court also rejected each of his arguments attacking the job posting and testing requirement. 

First, he asserts that taking the test was not actually a requirement because GE’s job posting did not mention it. But the posting says that it’s not exhaustive. After the posting lists certain minimum qualifications and a job description, a disclaimer states that any “classifications and definitions are merely for purposes of identification and general description and do not purport to be all inclusive or exhaustive of the actual requirements of any job so classified or defined.”  . . . . [He] parses these terms finely, arguing that the non exhaustive “classifications,” “definitions,” and “requirements” differ from “qualifications,” and so we should not read the disclaimer to apply to the posting’s “qualifications.” This argument fails because the posting on its face does not use these divisions strictly. For example, it states outside the paragraph labeled “Qualifications” that candidates must also have “satisfactory performance on their present job.” Id. That’s clearly a minimum qualification. And in any event, we have noted that “employers are not rigidly bound by the language in a job description.” Browning v. Dep’t of Army, 436 F.3d 692, 696 (6th Cir. 2006). GE was free to implement a testing requirement, multiple witnesses described how it did so, and the company made [him] aware of that when he applied.

The Court also refused to treat the job posting as a contract, which must be construed within its four corners under the parol evidence rule:

But though the CBA was a contract, the job posting was not. The CBA required GE to hire qualified candidates based on seniority, but it did not dictate which qualifications GE could set in the first place. Contract rules do not apply to discerning GE’s intentions with the job posting.

[He] probably means to say that the posting was an offer, one that he “accepted” by applying with the most seniority. But the posting wasn’t even that. At best, it was an invitation to be considered, or in contract-law terms, an invitation to offer, since nothing would have obliged GE to take any candidates.

The Court also rejected his argument that 80% should have been a passing score because the employer is entitled to set its own standards and he could not show that the employer had ever used a lower standard.  It also rejected his argument about subjective grading since not all answers perfectly matched the grading key verbatim and it also benefitted him at times since not all of his answers perfectly matched the answer key.

Yet he fails to acknowledge that GE graded the tests for substantive accuracy, not a verbatim match. [The supervisor] stated that he used his “professional judgment based on decades of relevant employment at GE Aviation, to determine when answers were substantively correct, even if they did not exactly match the language set out in the answer key.”

Finally, it rejected his argument questioning whether the younger employees completed the first test by themselves because the photocopies of the test had different levels of darkness in the written answers, some being dark black and some being gray.   This was particularly true when the other employee authenticated his test sheet and the plaintiff did not have any expert or other evidence to contradict that authentication. 

It’s true that a few of [one employee’s] letters appear more grey while the rest appear black, but the same is true of the other tests in the record. When we look at those tests, the same slight differences in color gradation show up. Keep in mind that we can see only digital copies of the original documents on our electronic docket. To support some alternative, nefarious explanation that would account for all the tests, [the plaintiff] would have to claim (and provide evidence) that [the supervisor] rigged each one, not just [his]. This [the plaintiff] has not done. That a bit of color was lost in electronic translation does not support an inference of discrimination.

The final five answers on [that employee’s] test similarly provide no evidentiary basis for questioning the test’s integrity. Though the writing appears in grey, that alone would not permit a reasonable jury to infer that [he] did not complete the test. Perhaps if GE claimed that [he] wrote only with a black pen, and a few answers appeared in red ink, then a court could conclude from the document’s face that a jury could reject GE’s version of events. Cf. Moyer v. Gov’t Emps. Ins., 114 F.4th 563, 569 (6th Cir. 2024) (finding it an open “factual question” whether a document with multiple redlines and electronic comments could be authenticated). Not so here. GE’s position is not that [he] couldn’t have used different writing utensils, say, a pen on the first sitting and a pencil on the second. It’s merely that [he] completed the test. So nothing [the plaintiff] gives us contradicts GE’s position.

                   . . .

[The plaintiff’s] argument, at bottom, is one of authentication under Federal Rule of Evidence 901. At trial, [he] would have to prove that the document is what he claims it is—the work, in relevant part, of someone other than [that employee]. And since GE has put forth [that employee’s] testimony recognizing the handwriting, [the plaintiff] has to convince us that he would have something in response. He doesn’t. He gives us nothing concrete to work with, such as an expert analysis or another handwriting sample for comparison, that could contradict the sworn testimony of [the employee and the supervisor].

As for the second test, the Court rejected his argument that the younger employee did not meet the minimum qualifications because he had been a tool shop supervisor and not a regular employee.

The Court also rejected his claims against the union for refusing to take his losing case to arbitration. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.